A divorce is the legal dissolution of a marriage and allows for either party to remarry. In order to be eligible to make an Application for Divorce, the party must be able to prove that:
Firstly, in applying for Divorce in Australia, in accordance with Section 39(3) of the Family Law Act 1975 (Cth) it is important to determine whether the Court will have jurisdiction. In order to be eligible to apply for Divorce in Australia, one of the parties must satisfy the following criteria at the time of filing the application:-
- Be an Australian citizen;
- Permanently live in Australia; or
- Be ordinarily resident in Australia or has been for one year prior to the filing of the application.
Once it is determined that one or both parties satisfy these criteria, the parties are eligible to apply either solely or jointly.
In order to grant the parties’ application for Divorce, the court must first be satisfied that the parties are legally married. This is usually proven by filing a copy of the marriage certificate with the Court. Once this is established, in accordance with Section 48 of the Family Law Act 1975 (Cth), the parties must satisfy the Court that:-
- The marriage has broken down irretrievably;
- They have been separated for a period of at least 12 months;
- If the couple are separated but living under the one roof, they must provide evidence, by way of, affidavits outlining their living arrangements;
- That there is no reasonable likelihood of the parties reconciling.
The Court sometimes has further requirements and may request further information before granting the Application for Divorce, including the circumstances where the couple have been married for less than two years, they must have attended marriage counselling and have obtained a certificate of counselling. If there are children who are under 18 years, the Court will request information as to whether consideration and arrangements have been made in regard to the care of the children.
What If my partner does not want a divorce – Can I apply solely?
If you wish to apply for a divorce, but your ex-partner does not want to, you can apply for it solely. This does involve more steps and can be more complicated. We recommend seeking legal advice prior to doing this to assist in preventing any issues.
How can we help
We assist our clients through every stage of the divorce process, from legal planning, to the restructuring of their wills and assets, allowing them to move on with their life. The team of NSW Family Lawyers are equipped to provide you with expert knowledge and advice relating to your divorce. We can also give you extensive information on your legal rights when filing for divorce.
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